New York’s “Bag Waste Reduction Act” and the regulations promulgated by the New York State Department of Environmental Conservation (NYSDEC) to enforce this law become effective on March 1, 2020. The law bans the distribution of plastic carryout bags, also referred to as film plastic bags, commonly associated with grocery stores.  The ban, however, is much broader than that. The law also includes several exemptions. Here’s a summary of some of the pertinent provisions.

First of all, the ban does not apply to shoppers. While shoppers are encouraged to switch to reusable bags, they can bring any type of bag into stores. Rather, the law bans the distribution of plastic carryout bags by anyone who is required to collect tax in New York State. In other words, stores that collect sales tax are banned from using plastic carryout bags for their customers’ purchases. The ban applies even if a particular transaction may be tax-exempt. The most common example is a grocery store that provides single-use plastic carryout bags to pack up groceries at the checkout counter. It also applies to clothing stores, home improvement stores and other retailers that are required to collect tax.

Certain bags are exempt from the ban. These include bags listed in ECL § 27-2801, as further refined in the newly finalized regulations found in 6 NYCRR Part 351. Exempt bags include those that are:

Used solely to contain or wrap uncooked meat, fish, seafood, poultry, other unwrapped or non-prepackaged food, flower, plant, or other item for the purpose of separating it from other items to prevent contamination, moisture damage, or for sanitary, public health or environmental protection reasons

Used by a customer solely to package items from bulk containers, such as fruits, vegetables, grains, candy, small hardware items (such as nuts, bolts and screws), live insects or fish or other aquatic items needing a waterproof bag

Used solely to contain food sliced or prepared to order

Used solely to contain newspapers for delivery to a subscriber

Sold in bulk to a consumer at the point of sale

Sold as trash bags

Sold as food storage bags, such as snack, sandwich, quart and gallon size bags

Used as garment bags, such as over-the-hanger bags or used by dry cleaners or laundry service

Plastic carryout bags provided by a restaurant, tavern or similar food service establishment

Provided by a pharmacy to carry prescription drugs

Reusable bags

A “reusable bag” is any bag (a) made of cloth or other machine washable fabric; or (b) other non-film plastic washable bag (such as a thicker plastic bag that can be washed). These bags must have at least one handle or strap that does not stretch, meet certain strength and durability standards, and have a minimum lifespan of 125 uses and the ability to carry at least 22 pounds for at least 175 feet.

Paper carryout bags may be made available by these stores and can be subject to a paper carryout bag reduction fee of 5 cents if this fee is adopted by a municipality. This paper carryout bag reduction fee, however, is not applicable to any customer using supplemental nutritional assistance program (SNAP) or women, infant and children (WIC) benefits as full or partial payment for the items purchased.

Any person required to collect tax who violates the law is subject to civil penalties. The first violation will result in a warning notice. If a violation occurs after the warning notice, a civil penalty of $50 will be imposed and any subsequent violation in the same calendar year will result in a $500 civil penalty.

The law also includes a pre-exemption provision that expressly provides that the state has exclusive jurisdiction of all matters pertaining to plastic carryout bags, thereby foreclosing a local municipality from imposing plastic carryout bag bans or other restrictions.

Some retailers covered by the law already have stopped using plastic carryout bags in their operations.  All of them must do so by March 1st.  Remember to “BYOB” – bring your own bag on your next shopping trip.

 

 

 

 

When determining whether a use is legally nonconforming for zoning purposes, the key consideration is whether the use was legal prior to the zoning restriction prohibiting it. A use cannot become legally nonconforming if it was not legal from the start, no matter how long it has existed. Consequently, the common assertion that something has “existed forever” or “always been that way” is not an absolute defense against a local enforcement proceeding seeking to abate a nonconforming use.

In Matter of Cradit v. Southold Town Zoning Board of Appeals (Docket No. 2017-04066, decided January 29, 2020),  the Appellate Division of the Second Department reviewed a local zoning board’s determination that the appellant’s use of a residence for short-term rentals was not a legal nonconforming use. In 2006, the appellant purchased a residence located in an R-40 zoning district in the Town of Southold. In 2014, she began operating the property as a place for short-term vacation rentals. In 2015, the Town amended its zoning ordinance to prohibit short term rentals, which the code defined as “transient rental properties.” The Town served the appellant with a notice of violation a short time later.

In response to the notice of violation, the appellant applied to the Town’s Zoning Board of Appeals claiming that her use of the residence for short term rentals was a legal nonconforming use and, therefore, protected from the Town’s 2015 zoning amendment. The Zoning Board, and the courts, disagreed. Adopting the Zoning Board’s reasoning, the Appellate Division concluded that the appellant’s use of the residence for short-term rentals was not a single-family use permitted under the applicable zoning prior to 2015. Rather, the appellant had converted the residence to something akin to a hotel or motel use, neither of which were ever permitted in the R-40 zoning district. Therefore, because the appellant was using her property in violation of the zoning ordinance prior to the 2015 zoning amendment, she was precluded from establishing it as a legal nonconforming use as a defense to the Town’s enforcement proceeding.

It is important to note that a use need not have been permitted as of right in order to be eligible for legal nonconforming status later. Again, the use must simply have been legally sanctioned prior to the later-in-time zoning restriction. Thus, a use which has received prior approval, whether pursuant to a special exception permit, conditional use permit, or even a use variance, can be become a legal nonconforming use as long as that prior approval is not lapsed or rescinded.

A copy of the Court’s Decision & Order can be read here: D61952

In Matter of Magid Setauket Assoc., LLC v The Town of Brookhaven Bd. of Zoning Appeals, the petitioners were the owner and the operator (“Petitioners”) of a Shell gas station located in the Old Setauket Historic District (the “Historic District”) Transition Zone, in the Town of Brookhaven (the “Town”).  Petitioners applied for an area variance to permit them to install a canopy extending over the gas pumps to protect patrons from inclement whether while filling up their tanks.  Petitioners’ proposed addition would have extended outward to 15.5 feet from the property line, where the Town Code required a minimum setback of 50 feet (see Town Code § 85-466 [C] [1]).  While Petitioners’ requested relief of nearly 70% relaxation from the Code was substantial, they pointed to prior examples where the Town Board of Zoning Appeals (the “BZA”) granted variances of similar or greater relief.

Residents, civic organizations, and various elected officials all opposed Petitioners’ application.  Public hearings were held in March and April of 2018, and the BZA formally denied Petitioners’ application in June of 2018.  Petitioners brought an Article 78 proceeding in July of 2018, seeking to annul the BZA’s denial of their area variance application.

The Court’s review here was limited, as it could annul the BZA’s denial only if it determined that the BZA “acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure.”  Regarding the latter, it is worth noting that a local “zoning board may [still] consider community testimony . . . and may require that issues raised by such testimony be addressed by the applicant,” provided that it does not “merely succumb” to such generalized pressure.  Nonetheless, local zoning boards are afforded broad discretion in making such determinations.

Here, Petitioners accused the BZA of ignoring its own precedent, citing examples where it granted variances for similar and more drastic setbacks on prior unrelated applications.  Additionally, Petitioners argued, inter alia, that because the gas station was located within the Transition Zone of the Historic District, rather than the Historic District itself, it should be afforded less scrutiny.  In response, the BZA argued that granting Petitioners’ application actually would have been precedent-setting, as none of the prior examples cited by Petitioners involved properties located within an historic district transition zone.[1]  The BZA also argued that Petitioners’ “hardship was self-created” and more feasible alternatives existed.  The BZA found that the proposed canopy would adversely impact the historic character of the area and “would result in an undesirable change to . . . the community.”  This and other factors served as the grounds for the BZA’s denial.

Ultimately, the Court upheld the BZA’s determination, finding that there was a rational basis to support it.  Addressing Petitioners’ argument regarding the prior variance grants, the Court ruled that just because similar variances may have been granted in the past, that does not mean the denial here was “arbitrary or capricious”.  None of those prior examples referenced by Petitioners’ involved properties that were in or surrounding any historic district, and that was a significant distinguishing factor.  Further, a local “zoning board ‘may refuse to duplicate previous error [or] change its views as to what is for the [Town’s] best interests’ . . . (Matter of Cowan v Kern, 41 NY2d 591, 595 [1977]) . . . .”

Takeaway:  Local administrative bodies enjoy significant discretion in the enforcement of their own code.  Even where there may be precedent to support an application, just one distinguishing fact, or simply just the board’s change of views, can serve as grounds for the opposite determination, which a reviewing court is likely to uphold.  Property owners, and lawyers alike, must be aware of this and consider all possible scenarios when appearing before such boards.

[1] The purpose of an “Historic District Transitional Area”, as defined by the Town Code, is “to control the effect of potentially adverse environmental, visual and developmental influences on an historic district” (Town Code § 85-1 [B] [“Historic District Transitional Area”]).

The history of convenience stores in the United States can be traced back to 1927, when an employee of the Southland Ice Company in Dallas, Texas, realized that people needed a place where they could buy basic necessities after other stores had closed.  The employee decided to sell items such as milk, bread, eggs and cheese from within his ice shop and stay open later into the evening, creating America’s first convenience store.  The Southland Ice Company eventually changed its name to 7-Eleven, the nation’s largest operator of convenience stores.  By the 1950s, as more people moved from cities to the suburbs and spent more time in their automobiles, the convenience store and gas station combination became popular.

Today, convenience stores are one of the few brick and mortar retail formats that are immune from the adverse effects of Amazon and other e-commerce giants.  According to the 2020 National Association of Convenience Stores (NACS)/Nielsen Convenience Industry Store Count, there are about 153,000 convenience stores in the United States, and about 80% of those stores sell gasoline and other motor fuels.  An estimated 165 million customers daily, and 58 billion customers annually, shop at convenience stores to grab a quick snack and beverage or a fresh prepared meal, fill up their tank or conduct a financial transaction.  In many ways, the convenience store has become the modern day general store.

Convenience stores also play a significant role in the U.S. economy.  An NACS publication entitled Convenience Stores and Communities (April 2019), reports that convenience stores now sell about 80% of the fuel purchased in the United States, and 2018 saw the 16th straight year of record in-store sales.  The average convenience store collects $1.28 million in taxes for local, state and federal governments and, due to their relatively small building footprint, collect an amount of taxes per square foot that rivals even the most successful big-box stores.  In 2017, U.S. convenience stores had sales of $654 billion, representing 3.1% of the $20.5 trillion U.S. gross domestic product.  Convenience stores also provided a total of 2.36 million jobs across the country.

Despite their growing popularity and importance to the economy, many Long Island communities subject convenience stores to restrictive and burdensome zoning regulations that limit their size and frustrate their very purpose – to provide convenience to their customers.  The concept of convenience has evolved from the purchase of “Cokes and smokes” while refueling to grabbing a made-to-order sandwich, hot bowl of soup, or a cup of gourmet coffee.  Many newer and larger stores often offer selections of fresh-cut fruits and vegetables, premade salads and even cold-pressed juices and smoothies.  These offerings are mostly directed toward health-conscious millennials, who are more likely to buy prepared foods on the go at a convenience store than any other age group.  Not surprisingly, the format of modern convenience stores has increased significantly from the typical 1,200 square foot building of the 1950s and 1960s, with many chains now constructing buildings of 5,000 square feet or more.

Some municipalities, such as the Town of Islip, recognize the evolution of convenience stores and do not limit their size.  Other municipalities, however, have local codes that regulate the size of convenience stores as they existed 60 years ago.  Still others have adopted new zoning regulations that allow for larger convenience stores, yet not large enough to serve the wants and needs of today’s convenience store customer.  For instance, the Town of Southold’s regulations limit the size of a convenience store associated with a gas station to 1,200 square feet.  In the Town of Brookhaven, the building area for a convenience store accessory to a gas station is limited to 1,500 square feet.  Brookhaven’s code allows an increase in building size with the redemption of a Pine Barrens Credit, but only to a maximum of 3,000 square feet.  In 2019, the Town of Smithtown amended its zoning regulations to increase the maximum allowable size of a convenience store associated with a gas station from 350 square feet to 1,250 square feet.  While new regulations that permit larger stores are definitely a step in the right direction, they are still too restrictive for many modern, full-service convenience store chains.

Long Island lags behind others areas of the country with respect to large format convenience stores and it’s time for local governments to “wake up and smell the gourmet coffee” that other regions are enjoying at their local convenience stores.  Long Islanders who have traveled to other states and visited Wawa, Sheetz, Rutter’s or Circle K stores, or have been to one of the new QuickChek stores in Lake Grove, Commack or Copiague, know just how convenient it is to refuel their automobiles and refuel their bodies with a freshly prepared meal or snack all in one stop.  Local elected officials and planners should recognize that, in the appropriate location, a modern, full-service convenience store can be an economic boon to their community, while providing their constituents and the motoring public with the convenience and product selection that they now desire.

  

“Operation Pay Dirt” was a joint investigation by the Suffolk County District Attorney’s Office, the New York State Department of Environmental Conservation (NYSDEC), and the Suffolk County Police Department. It investigated illegal dumping on Long Island.  Illegal dumping is of particular concern on Long Island because contaminants in dumped material can leach into the ground and adversely impact our sole source aquifer.

The joint investigation led to the appointment of a special grand jury.  The grand jury indicted 30 individuals and 9 corporations  for illegally disposing of solid waste at 24 locations on Long Island.  All 39 defendants pleaded guilty. One of the individual defendants, referred to as the “dirt broker,” was sentenced to two to four years in state prison.

Also, the  Suffolk County Special Grand Jury Report on Environmental Crimes was issued on August 2, 2019. In it, the grand jury explained the illegal dumping scheme and recommended new laws specifically aimed at punishing these environmental crimes.

The grand jury report highlighted the following:

  • Solid waste is often associated with “industrial, municipal, commercial, institutional, mining, or agricultural operations or from residential activities” and can include hazardous and acutely hazardous materials.
  • Construction and demolition debris (C&D), a type of solid waste, is often generated during residential, commercial and industrial construction, demolition, and renovation projects.
  • Each day, thousands of cubic yards of C&D and other solid waste material are transported across the metropolitan New York region to facilities that are authorized to accept this material.
  • Proper disposal of this material can be expensive – disposal fees for hazardous and acutely hazardous waste can exceed $1,000 per truckload (about 30 to 40 cubic yards).

The grand jury report explained the role of “dirt brokers” who steer C&D material, which can contain hazardous and acutely hazardous substances, to transfer stations and recycling facilities that are willing to skirt the rules in order to increase their profits.  These unscrupulous facilities do not dispose of the material as required by law.  Rather, they dilute the material by mixing it with dirt and work with the dirt brokers to get rid of the mixture, falsely claiming it is clean fill usable anywhere that general use fill can be used. Falsified manifests and dump tickets are used as part of the scheme.

The grand jury report noted that many home and business owners, as well as at least one school, were duped into accepting this material as clean or general use fill, but which actually contained C&D and hazardous and acutely hazardous material.

The grand jury indicated that the current Penal Law and Environmental Conservation Law (ECL) were  inadequate to address the severity of the harm being done.  It recommended several legislative and administrative actions to address the issue. These include:

  • Forming an “Environmental Crimes Team” within district attorney offices to investigate and prosecute environmental crimes.
  • Implementing new protocols to document the handling of solid waste and other material from the point of pickup to the point of final destination.
  • Creating an alert system that would notify the NYSDEC of any site “that receives greater than a threshold number of truckloads of material within a 30-day period.” This would allow for rapid inspections of suspicious sites.
  • Amending the New York State Penal Law to add specific environmental crimes to deter illegal dumping.

After the grand jury report was issued, New York State Senator Todd Kaminsky (D-9th) introduced a bill that would create multiple new environmental crimes to address illegal dumping.  As of this writing, the bill, S6758, is currently in the Senate Codes Committee.

The proposed bill would amend the Penal Law to add crimes for illegal disposal. These range from criminal disposal in the fourth degree (class A misdemeanor) (disposal of solid waste); criminal disposal in the third degree (class E felony) (disposal of 10 cubic yards or more or 20,000 pounds or more of solid waste); criminal disposal in the second degree (class D felony) (disposal of 70 cubic yards or more or 140,000 pounds or more of solid waste); criminal disposal in the first degree (class C felony) (disposal of hazardous waste or reckless disposal of acutely hazardous waste); and aggravated criminal disposal (class B felony) (disposal of acutely hazardous waste).  The proposed bill includes enhanced penalties where the conduct resulted in  contamination of groundwater.

The proposed bill would create the crime of scheme to defraud by disposal of solid waste (class E felony). This requires a defendant to engage in a “systematic ongoing course of conduct with intent to defraud more than one person by disposing of solid waste . . . on such person’s property under false or fraudulent pretenses, representations, or promises, and, so damages the property of one or more of such persons.”

The proposed bill would create the crimes of criminal possession of solid waste in the second degree (class A misdemeanor); criminal possession of solid waste in the first degree (class D felony); criminal acceptance of solid waste or C&D (class A misdemeanor); criminal acceptance of a hazardous substance (class D felony); and criminal acceptance of an acutely hazardous substance (class C felony).

The proposed bill would add a new provision to the ECL that would require documentation of the movement of this material from the point of receipt to its point of final disposition. The proposed bill would criminalize making or causing a false waste tracking document or a false entry in a solid waste tracking document.

If the proposed bill is enacted, perhaps illegal dumping will be deterred in light of the significant increase in jail time and penalties proposed for these activities.

 

In SEQRA litigation, there is an oft-quoted proposition that the Lead Agency may not abdicate or defer its responsibilities under SEQRA to another agency. See Riverkeeper, Inc. v. Planning Bd. of Town of Se., 9 N.Y.3d 219, 234 (2007). To satisfy SEQRA’s requirements, the Lead Agency must conduct an independent study of the relevant areas of environmental concern and take the requisite hard look at them. Id. Consequently, there are times when a Lead Agency reaches a different conclusion on a matter of environmental concern than another agency opining on the same project. This very issue was raised before the Fourth Department in Matter of Davis v. Zoning Board of Appeals of City of Buffalo (App. Div. 4th Dept., Docket No. 18-01597).

In Matter of Davis, a company made applications to the City of Buffalo Planning Board and Zoning Board of Appeals for approvals to construct a new mixed-use building in a residential neighborhood. The project called for the demolition of 14 existing structures located within a district listed on the National Register of Historic Places. The Planning Board served as Lead Agency.

After the project was approved, the petitioners commenced an Article 78 proceeding seeking to annual the Planning Board’s and Zoning Board’s decisions. Among their claims, the petitioners alleged that the Planning Board, as the Lead Agency, failed to take the requisite hard look at the project’s impacts on the historic resources within the district. The Appellate Division disagreed.

As part of the environmental review on the project, the Planning Board contacted the New York State Office of Parks, Recreation and Historic Preservation (SHPO) as an interested agency. SHPO returned a letter indicating its belief that the project would “significantly and negatively alter the character of the surrounding historic districts.” The Planning Board rejected this finding, ultimately reached the opposite conclusion, and issued a negative declaration for the project. The trial court and Appellate Division upheld this decision. The appellate court wrote:

The Planning Board prepared a final environmental impact statement and addressed the concerns raised by SHPO, but ultimately disagreed with that agency and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. The record reflects that the Planning Board conducted a lengthy and detailed review of the project, including its evaluation of the potential impacts to historic resources, and its written findings demonstrate that it provided a reasoned elaboration for its determination. Its determination must be upheld inasmuch as it is not arbitrary, capricious, or unsupported by substantial evidence.

Memorandum and Order, Nov. 8, 2019, at *3 (citations omitted).

The actions of the Lead Agency Planning Board in Matter of Davis stand in stark contrast to those of the Planning Board in Peterson v. Planning Bd. Of the City of Poughkeepsie, 163 A.D.3d 577 (2d Dept. 2018), a similar case that reached a different result. In Peterson, a developer sought approvals from the local Planning Board to build a condominium on real estate adjacent to a historic district. The Planning Board issued a negative declaration for the project, prompting legal challenge by a local historic neighborhood association.

On appeal, the Second Department reversed the trial court’s order dismissing the association’s petition. The Appellate Division ruled that the Planning Board failed to take the requisite hard look at the environmental issues associated with the project because, in reaching its determination that the project would not adversely affect the character of the adjacent historic district, the Planning Board relied exclusively on a letter it received from SHPO in which that agency summarily concluded that the project would not negatively affect the district. Thus, the Planning Board failed in its charge to conduct an independent investigation into that area of environmental concern. Moreover, the Court opined that the letter was conclusory and failed to satisfy the reasoned elaboration required under SEQRA.

The Fourth Department’s decision in Matter of Davis reminds us that although Lead Agencies are encouraged to consider the opinions of other agencies, they are not bound by them. Indeed, as the Peterson decision suggests, independent consideration and review is the better practice and provides greater assurance to the Lead Agency that it its satisfying SEQRA’s mandate.

A copy of the Court’s Memorandum and Order can be found on the Fourth Department’s website at https://www.nycourts.gov/courts/ad4/. If you have any questions or comments, please feel free to contact the author at pbutler@farrellfritz.com.

In Town of Brookhaven v Golemi, 2019 NY Slip Op 51477(U) [Sup Ct, Suffolk County 2019], the Town of Brookhaven (“Brookhaven”) successfully sought and obtained injunctive relief to remove a structure that violated Brookhaven’s Town Code (“Code”). This case reminds landowners to be responsive to local governments in their enforcement of zoning ordinance. It is also a simple and helpful illustration of how municipalities can pursue a violator through to a remedy – even Court sanctioned self-help.

The defendant is a Brooklyn resident who owns the subject premises, which are located in Mastic Beach, New York, and zoned within the “A-Residence-1” District. In February 2018, a complaint was filed with the Brookhaven Law Department stating that the premises were occupied by a storage trailer – without a valid building permit. The following month, a Brookhaven town investigator issued an appearance ticket to the defendant by “nail and mail” service. The ticket charged the defendant with violating Town Code Section 85-197(A) and required his appearance before the Suffolk County Sixth District Court. (Photographs filed by the Town show the  “trailer” looks like a shipping container.)

After failing to appear at his first scheduled appearance, the defendant appeared on the adjourn date and pleaded guilty to the charge. The District Court fined the defendant $500, and sentenced him to a conditional discharge requiring either (i) an application for the necessary permit or (ii) removal of the trailer, within 30 days.

Three months later, in September 2018, the defendant had neither applied for the permit nor removed the trailer. In November 2018, the District Court issued a Declaration of Delinquency and Notice of Appearance, ordering the defendant to appear because he violated the conditions of discharge. The District Court also warned the defendant that his failure to appear may result in the issuance of a bench warrant for his arrest. The defendant failed to appear and the District Court issued the bench warrant.

In May 2019, Brookhaven commenced an action in the Supreme Court, Suffolk County, based upon the same facts and issues, and applied for an order (i) declaring the defendant breached the terms of conditional discharge, (ii) ordering defendant remove the trailer, (iii) granting Brookhaven authority to enter upon the defendant’s premises to remove the trailer – if necessary, (iv) if removal is necessary, charging the costs to the defendant and adding them to the subsequent assessment, and (v) ordering the defendant to maintain the premises in conformance with the Town Code. The defendant failed to oppose Brookhaven’s application, and the Supreme Court granted its motion.

N.Y. Town Law Section 268(2) authorizes towns to provide for enforcement of their local zoning ordinance, e.g. by commencing an action to prevent, restrain, correct or abate the unlawful construction of a building in violation of the local zoning ordinance. Removal is an appropriate method by which a town may abate such violations. Brookhaven has also enacted Town Code Section 85-157, authorizing it to commence actions or proceedings to prevent, restrain, correct or abate violations. Here, Brookhaven brought this action – within its powers – to remedy the defendant’s violation of Town Code Section 85-197(A), and met its burden of proof. The defendant did not oppose the application, and he did not refute the fact that the premises were in violation of the Town Code or that removing the offending storage trailer was not a remedy available to Brookhaven.

The Supreme Court issued an order granting Brookhaven’s application, ordering removal of the storage trailer, granting Brookhaven the authority to enter onto the defendant’s premises to remove the trailer, mandating that – if removal is necessary – costs incurred by Brookhaven shall be paid by the defendant added to the subsequent assessment, and requiring the defendant to maintain the premises in conformance with the Town Code. (The Court did not decide the issue of whether the defendant failed to comply with the conditions of discharge because such a finding was unnecessary.)

Virtually all municipal ordinance violations are charged, arraigned, cured and/or disposed without resorting to measures such as these, where the government obtains the power to enter onto a private citizen’s land and extract an improvement. This case, however, reminds landowners that municipalities can – and will – enforce their local zoning ordinance to the fullest extent.

BANG!  Yaphank, New York.  In November 2019, after years of protracted ligation, Hunter Sports Shooting Grounds, Inc., (“HSSG”) the operator of the Suffolk County Skeet, Trap & Sporting Clays Range (“Range”), was dealt another blow by the Supreme Court, Suffolk County in Hunter Sports Shooting Grounds, Inc. v Foley.

Acquired by Suffolk County (“County”), in 1963 , the Range is a recreational trap, skeet and sporting clays facility located in the Town of  Brookhaven (“Town”), and operated by various licensees of the County since 1982.  In 1962, there were no homes constructed in the area of the Range, as depicted in aerial photographs. Another aerial photograph taken in 1984 shows three residences.  A 1994 photograph depicts eleven homes in the area of the facility. Today, the Range vicinity remains largely uninhabited, as shown in this Google maps satellite view.

In 1987, the Town enacted a noise ordinance which, among other things, authorized the imposition of fines upon entities that emit sound in excess of 65 decibels.  In 2006, HSSG began operating the trap and skeet shooting range.  In November and December 2006, the Town commenced a series of proceedings in the Sixth District Court, Suffolk County, alleging that HSSG was in violation of the Town’s noise ordinance.  In 2007, HSSG commenced this action against the Town seeking, among other things, a  judgment declaring that the Town’s actions in enforcing the noise ordinance against it were unconstitutional, and that the noise ordinance was unlawfully and improperly applied to HSSG.

In somewhat of a “shotgun” approach, HSSG’s causes of action alleged: (i) the Range is a preexisting, nonconforming use pre-dating the Town’s enactment of its noise ordinance and, therefore, is exempt; (ii) implementation of the noise ordinance is an unlawful exercise of police power denying a reasonable rate of return and destroying the property’s economic value, thus constituting a confiscatory taking; (iii) enactment and enforcement of the Town’s noise ordinance constitutes an administrative taking of a vested property interest, and the summonses are without force or effect; (iv) the “public interest immunity” bars application of the Town’s noise ordinance because it conflicts with the County’s noise ordinance; and (v) Municipal Home Rule and the Legislature’s delegation to manage parks to counties dictate that the County’s noise ordinance supersedes and controls, rendering the Town ordinance unconstitutional and inapplicable to the Range.

As to the Municipal Home Rule/delegation argument, the County acknowledged its control of the park’s facilities came from the state’s delegation, and it exercised that control by enacting an ordinance exempting shooting facilities from its own noise ordinance. Thus, the County in effect attempted, by its noise exemption ordinance, to insulate itself from the effects of the Town’s noise ordinance under the umbrella of this general management delegation from the state.

The Court held that the concept of a prior, non-conforming use is relevant only if there is a zoning regulation prohibiting such use. Thus, in order to find that HSSG possessed a vested, non-conforming use protected by the Fourteenth Amendment, the Court must find that the Town’s noise ordinance is a zoning ordinance. If, on the other hand, the municipal ordinance is merely a valid exercise of the Town’s police power to protect the health, safety and welfare of the residents, HSSG’s operation of the Range cannot serve as a basis for establishing a constitutionally protected property interest.  The Court determined that the noise ordinance was not a zoning regulation but rather a legitimate exercise of the Town’s police power in the form of a noise ordinance.  As a result, the Court found that even though the Range was a long-term, pre-existing, non-conforming “grandfathered” use, that cannot be used to shield HSSG or the County from the Town’s enforcement of its noise ordinance.

In general, when there is a clash between local governmental use regulations, this conflict may be resolved with a “balancing of public interests” analytic approach, often referred to as the “Monroe Doctrine”.   (See, Matter of County of Monroe [City of Rochester], 72 NY2d 338,  [1988].  Using the Monroe Doctrine here, the Court was not “inspired by this record” to afford HSSG or the County an exemption from the Town’s noise ordinance. The Court determined that a recreational trap and skeet shooting range is neither the type nor magnitude of general use or benefit comparable to a regional airport as discussed in Monroe, tipping the scales in favor of the Town’s noise ordinance.

Regarding the denial of reasonable return and administrative taking claims, the Court rejected these claims too, because HSSG did not assert a traditional takings claim for compensation; rather, it sought only to be exempt from the Town’s noise ordinance. The Court also noted the Range cannot be developed because it is parkland and also a repository of significant lead contamination, so it has no value of which to be deprived.

Throughout its decision, the Court also discussed the issue of HSSG  operating the Range as licensee after the Town’s noise ordinance had been in effect for 20 years.  The Court stated that statutes or ordinances in effect at the time title of property is taken by a subsequent owner deprives that owner of an opportunity to avail itself of the takings analysis in Penn Central Trans. Co. v. New York City, 438 U.S. 104 [1978] because it is not a taking; it is an existing condition which impacts upon the value of the property prior to its purchase.  The Court’s line of reasoning seems to ignore the United States Supreme Court’s Palazzolo v Rhode Island, 533 U.S. 606 [2001] decision, which held that a person’s purchase of property already affected by adverse regulations does not bar a challenge of those regulations.  Regardless, the Court here held that HSSG’s attempt to argue one prong of Penn Central’s three-part test (i.e. economic impact) fails to suffice a claim for taking. The Court also held that since HSSG is only the licensee of the Range, it had no real property rights of which to be deprived.

As the gun smoke clears from this 42-page decision, HSSG is facing a difficult decision of whether to pursue an appeal, figure out a way to comply with the Town’s noise ordinance, or close its operations at the park.

On December 5, 2019, the Village of Westbury Board of Trustees adopted legislation creating the Maple Union Transit-Oriented Development District (or “Maple Union TOD”). The sweeping new law eliminates the Village’s industrial zoning districts along the Long Island Railroad corridor and replaces them with seven mixed-use subdistricts serving as the foundation for a new downtown area consisting of medium-density residential buildings, ground-floor retail and commercial uses, and significant community and cultural amenities and open space. With some subdistricts allowing buildings as tall as five stories—and perhaps even taller—the Maple Union TOD opens the door to exciting and transformative development opportunities in the heart of Nassau County.

Following its receipt of a State Downtown Revitalization Initiative grant in 2016, the Village established a local planning committee and commissioned a multiyear study into ways to revitalize the Village’s downtown areas. It was through that process that the Village developed its plan to transform the Village’s underutilized industrial districts into an expansion of the Village’s downtown by turning the area into “Long Island’s model transit-oriented, diverse, walkable, arts-centric downtown.” (See § 248-47[E]).

The new legislation focuses on rezoning the “Maple Union Triangle,” 53 acres of (formerly) industrially-zoned sites bounded by Post Avenue, Maple Avenue, School Street and Union Avenue in the Village of Westbury. (See attached graphic: Cultural Sensitivity Map). Six of the seven newly-formed subdistricts (MU-R2 through MU-R7) allow multistoried development that can be solely residential or can include ground-level retail and/or commercial uses; the amendment lists more than 30 permitted retail/commercial uses. (See §§ 248-351—357). Restaurants are also permitted at street-level within those subdistricts with a Special Permit from the Village Board of Trustees. The uses in subdistrict MU-R1 are restricted to lower density attached housing and townhomes, and houses of worship (See § 248-350), all of which are also permitted in subdistricts MU-R2 through MU-R7.

Another key aspect of the new legislation is its incentive zoning provisions, which are found at Section 248-359. Within the Maple Union TOD, the base height restriction for all new development is three stories (or 40 feet). (See Maple Union District Schedule of Regulations). However, for projects in subdistricts MU-R4 through MU-R7, the Board of Trustees may grant height bonuses in exchange for a broad range of public benefits that may be donated to the Village. The list of eligible public benefits includes affordable workforce housing (in excess of the minimum State requirement), age-restricted housing units, veteran preferential housing units, off-street public parking, open space and park improvements, streetscape improvements, and several others. (See § 248-359[B]).

The most generous height bonuses are available in the MU-R4, R5 and R6 subdistricts, where the Board of Trustees can approve building heights of up to five stories (or 65 feet). (See Schedule of Regulations). However, the bonuses could exceed even those thresholds. The legislation explicitly states that “[t]he Board of Trustees expressly reserves to itself the right to grant bonuses exceeding those set forth in the Schedule of Regulations, if it deems such appropriate.” (See § 248-359[C]). It is therefore conceivable that, for the right project and for the rights public benefit, the Board of Trustees could grant even greater height bonuses.

Some ancillary, but equally significant aspects of the new legislation are the changes it makes in the Village’s existing business districts on Post Avenue and the privatization of waste collection and disposal for all new development within the Maple Union TOD. In the Business Districts B-1, B-2 and B-4, all new buildings must be set back from their front property line 12 to 20 feet to accommodate new, expanded sidewalks built by the property owner and to the Village’s specifications. (See §§ 248-126-a, 136-a, 152-a). Within the Maple Union TOD, the owners/operators of new developments are required to secure and maintain private garbage and recyclables collection agreements and must record a covenant memorializing, in perpetuity, the private sanitation and recycling obligations for the property. (See § 248-362).

Finally, it is important to note that all new development within the Maple Union TOD is subject to the new zoning and approval procedures set forth under the new legislation. (See § 248-360). The old industrial zoning was expressly discontinued. (See Ch. 248, Art. XXIII, XXIV). Any industrial uses lawfully existing prior to the enactment of the new legislation are now (presumably) preexisting non-conforming uses subject to the Village’s law on non-conforming uses. (See § 238-232).

Copies of the new legislation and Schedule of Regulations can be found on the Village website www.villageofwestbury.org (click “Zoning Code for the Maple-Union Transit Oriented Development (MU TOD).”

In Akeson v Inc. Vil. of Asharoken, 2019 NY Slip Op 32756(U), Index No. 57/2018 (Sup Ct, Suffolk County 2019), the Supreme Court dismissed a petition challenging the Incorporated Village of Asharoken’s (“Asharoken”) decisions to deny permits for the construction of seasonal and removable docks at two residential properties along Northport Bay. The two properties lie situated within the “Ida Smith Property,” which runs lengthwise approximately three-quarters of one mile along a crescent beach (“Ida Smith”). The facts of this case are particularly unique because the underwater land is physically within Asharoken’s boundaries, and its direct land regulations clash with private property owners’ riparian rights.[1]

A. Regulation of Underwater Land

Typically, the State of New York retains jurisdiction over navigable waters. The Navigation Law, however, provides an express carve-out for Nassau and Suffolk Counties. This carve-out recognizes colonial land grants vested Long Island’s underwater land to townships, which regulate the tidewaters bordering on and lying within their boundaries. While the Navigation Law authorizes villages to regulate vessels operated upon or anchored within bordering waters, villages are powerless to regulate the underwater land without express Legislation. Here, though, the underwater land is physically located within Asharoken – giving it traditional regulatory power.

B. Asharoken’s Village Code

The Asharoken Village Code (“Village Code”) specifically regulates docks within Ida Smith. The Village Code created an Environmental Review Board (“ERB”) to review applications for the construction or alteration of docks within Ida Smith, and to recommend approval or disapproval to the Asharoken Board of Trustees. Significantly, the ERB may recommend approval only when it determines that the proposed dock will provide none of the adverse consequence regarding the environment, pollution, swimming, navigation, aesthetics or generally, as specifically set forth in the Village Code. In addition, docks are subject to various enumerated conditions and rules.

C. The Petitioners’ Dock Proposals and Asharoken’s Denials

The petitioners, who are effectively neighbors with only two homes between them, respectively sought to construct removable docks extending over the beach and foreshore and into Northport Bay. The proposed docks would extend 130 feet seaward, parallel to one another and separated by 300 feet. Prior to filing their dock applications with Asharoken, the petitioners sought approval from the New York State Department of Environmental Conservation (“NYSDEC”), the New York State Department of State (“NYSDOS”) and the United States Army Corps of Engineers (“USACE”). The NYSDEC reviewed the applications because Northport Bay’s shoreline is a tidal wetland, and it classified the dock proposals as Type II actions under the State Environmental Quality Review Act and issued permits. The NYSDOS reviewed the applications because Northport Bay is a Significant Coastal Fish and Wildlife Habitat, which requires consistency with New York’s Coastal Management Programs, and determined that the proposals met the criteria. The USACE reviewed the applications because a dock cannot be built in navigable water outside of a harbor without approval from the federal government, and issued permits.

Therafter, on September 25, 2015, the petitioners filed their dock applications with Asharoken. The ERB held seven public hearings over the course of the next two years, during which it received reports and testimony in favor of and against the applications from various environmental, ecology and land use experts. The petitioners revised their dock proposals in response to objections and comments at the hearings. After the fifth hearing in October 2016, the ERB recommended that the Asharoken Board of Trustees hire an independent environmental consultant to shed light on the conflicting expert opinions. Asharoken’s consultant submitted its final report in July 2017. On September 25, 2017, the ERB voted 3-2 to recommend disapproving the applications.

On October 30, 2017, the ERB issued identical written decisions, one for each application, setting forth its findings vis-à-vis the Village Code’s environmental consequences. The ERB found that the petitioners failed to demonstrate that the docks would not provide any of the adverse consequences. Among other things, the ERB concluded that the petitioners failed to show that the docks would not: significantly impede tidal flow; result in accretion of sand and seaweed; result in increased pollution from boats running or idling; and, interfere with the navigation of sailboats tacking to and from the beach, as well as rowboats, canoes and small boats along the shore. The ERB also found that the length of the docks would be an obstacle to lateral swimming, and that the location of the docks in the center of the beach would significantly impact the unobstructed vista of Northport Bay.

On November 30, 2017, the petitioners submitted additional revisions in response to Asharoken’s consultant’s report. Despite this, on December 5, 2017, the Asharoken Board of Trustees voted to adopt the ERB’s findings and disapproved the applications (“Dock Denials”). The petitioners commenced this Article 78 proceeding to challenge the Dock Denials on the grounds that the Asharoken Board of Trustees’ findings were arbitrary and capricious, an abuse of discretion and affected by an error of law because these determinations disregarded the petitioners’ riparian rights.

D. The Article 78 Challenge and Decision

Article 78 judicial review of municipal agency decision is limited. Because the Asharoken Board of Trustees made the Dock Denials after informal public hearings, the Court noted its role is only to determine whether the Dock Denials are affected by an error of law, or are arbitrary and capricious or an abuse of discretion, or irrational. If the Dock Denials have a rational basis, i.e. “a reasonable fulcrum of support in the record,” then the Court cannot substitute its judgment for that of the Asharoken Board of Trustees.

In discussing the contents of the record in detail, the Court held that the ERB had discretion to choose to credit some experts over others, and that the ERB’s and the Asharoken Board of Trustees decisions to rely upon particular expert opinions and testimony does not render the Dock Denials arbitrary, capricious or lacking in rational basis.

More importantly, the Court rejected the petitioners’ argument that the Dock Denials deprive them of their riparian rights. The Court recognized riparian rights include reasonable, safe and convenient access to navigable water, including the right to build a pier or wharf out. These rights, however, are not unfettered and must yield to the legitimate exercise of municipal police powers, i.e. the protection of the rights of the public. The Court held that the Asharoken Board of Trustees and the ERB appropriately applied the Village Code to protect the rights and interests of the public.

The Court relied upon a Village Code provision expressly noting alternative access to navigable water: “various means already exist for owners to access their boats, including private rowboats, membership in various nearby yacht clubs, public mooring facilities in Northport, Centerport and Huntington Harbors, commercial marine supply companies providing launch service and moorings and the Village of Northport dock.” Based upon this provision, the Court concluded the Dock Denials did not deny the petitioners’ riparian rights of access to the navigable waters of Northport Bay, but merely limited their modes of access to the other, existing means. The petitioners have appealed.

It is worth noting that the alternative means of access cited in the Village Code are not directly related or attached to the upland (e.g. petitioners’ riparian properties). Instead, these means require riparian landowners to access navigable water without utilizing their own waterfronts.

-END NOTE(S) BELOW-

[1] By definition, “littoral” rights concern the coast or shore of an ocean, sea or lake, whereas “riparian” rights concern rivers, lakes and streams. For convenience, and as is the colloquial custom, the use of the term “riparian rights” here encompasses all waters rights as appropriate in the context.